Employer Facebook Checks: How the Law Struggles with Culture and Ignores Metaphysics

Question of privacy in cyberspace cover a vast range of applications. One that I find interesting is the use of social media as a tool by potential employers to research prospective employees. This is interesting because it is at an intersection of cultural, technology, law, and metaphysics.

It is increasingly common for employers to check on a prospective employee’s Facebook page (or other social media). I like to use the case study of Stacy Snyder in this NYTonline article: http://goo.gl/bMw0Kl

The issue is that a student-teacher was dismissed over a photo on her MySpace (that dates the example a bit, eh?) that was captioned “Drunken Pirate.” This situation becomes the image of concern: an employer delving into your personal (yet published) photo album to look for objectionable material.

Let me divide up the issues:

1) The legal and/or cultural claim to privacy. Before Facebook or MySpace, it would be extraordinary for an employer to ask to see photos from your latest party as part of the application process (barring government security clearance checks). Although social media has allowed us to share such personal material with a wider range of friends, we are not culturally comfortable simply surrendering previously private/personal material to the entire public sphere.

2) Context is everything. Bill Waterson’s iconic character, the rascally 2nd-grader Calvin, once explained that people are wrong to assert that “photos never lie,” for, in fact, all they do is lie. To illustrate, Calvin clears one area of his room and puts on a tie to have himself photographed as a clean, tidy young boy (he is normally dressed in a t-shirt and has a notoriously messy bedroom). So it may be argued with Facebook photos, Tweets, etc: Can a single snapshot, sentence, or post represent an individual- even partially? Can it be completely incorrect? Without further explanation, how badly can it be misinterpreted? This claim speaks not only to the protection of the poster, but also raises the question of whether investigating an applicant’s social media is truly helpful in obtaining accurate data about the applicant. A related issue here is the notion of Performance Identity online (see: Life on the Screen by Sherry Turkle). Many posts and photos may be uploaded not as a reflection of actual identity, but as an effort to entertain or amuse a particular audience.

3) The Metaphysical puzzles of being and identity over time. One of the core points of the NYTonline article linked above is that the internet makes possible the storage of everything we say or do- FOREVER. One question is whether applicants ought to be judged by high school or college photos or posts. Indeed, the question is founded on an ancient metaphysical quandary: what is the relationship with one’s self over time? We have a cultural concept of “not being the same person” at age 15 as at age 30. Yet right now, many 30 year old job applicants could be in the position to defend the digital traces left by their 15 year old selves.

The final point to note here is that Facebook was not designed to be a massive social media platform through which employers scouted and screened applicants. It was a way for college (and later high school) students to communicate and make limited broadcasts to a select audience. It was a kid’s toy, really. To me, it still is- I think that’s why my generation sometimes feels weird that our parents have Facebook profiles. The platform was never made for “grown-ups” or “grown-up things.” That was an accident, and treating it otherwise is a mistake.

Privacy (as the Withholding of Information) in the Information Age

Business professionals in e-commerce talk about information like it is today’s fundamental commodity. Yet information— raw data— is less helpful than we tend to think. Privacy becomes harder to maintain in an era in which business and government think that more data is always better and that accruing data will solve problems. Information is necessary, but not sufficient, to solving problems and pushing progress along.

Lots of entities want information: governments want information about their citizens, employers want information about their employees, corporations want information about their consumers, etc. Such entities have always wanted information, but only recent technological developments have made it reasonable to obtain and organize that information. The biggest remaining barrier to such information collection is the ethical and legal concept of privacy. My contention is that the mere gathering of data is less helpful than the gatherers might think.

One way to think of this issue is to see human action as having two components: 1) an internal motivation or attitude and 2) an external display of action. So, if I purchase a large supply of plastic drinking cups, the store computers may recognize my purchase and correlate it to the kinds of other items people purchase with drinking cups: plastic cutlery, snack food, soda, and so forth. The store wants to predict my motivation by examining my action and correlating my action with similar actions and using inductive reasoning to sell me more things. But what if my motivation in buying many cups is to have a cup stacking competition? Or to have a 2nd grade class plant lima beans? The problem with relying heavily on gathering information is that you can only make guesses about the internal state of the actor.

The debatable assertion is this: Humans cannot be captured by data sets. Some (who probably favor Hume) may say they can, but it must be conceded that the data set must become extremely, extremely large. Perhaps more importantly, some elements essential to that data set cannot be collected through transaction records, e-mails, Facebook “likes”, tweets, and all other collectable data. Seen in this way, a reasonable fear emerges: as entities gather data, they act on that data as though it is a more complete picture than it actually is. Another way to state this issue is “data does not explain itself.”

There are a few important takeaways about the limits of the power of data:

1) You don’t get to know people from their Facebook profiles.

2) Stores know what people buy, but not always why they buy them.

3) Privacy can protect both parties from an incomplete picture.

4) Data is a raw material. It must be processed with understanding, refined through meaning and context, and crafted with wisdom into usable information and then into intelligence.

5) Computer systems can record observations of fact and interact according to algorithm, but cannot “understand” any “significance” or “meaning” of any data.

NOTE: There is so much to this subject! I expect to return (probably repeatedly) to this subject in more specific settings to explore deeper nuances and applications of issues.

Cheat Codes, Privacy, and Disobedience: Generation Y’s Perspective.

I saw a YouTube video of some teens who had devised a most wise and useful way to spend their time. They call it “Gallon Smashing.” The idea is simple: walk through a not-too-crowded supermarket with one or two plastic gallon jugs of some liquid (milk will do). When no one is looking, smash the gallons on the floor and immediately pretend to have tripped and caused the messy spill accidentally. It’s a way to destroy property and get away with it- in fact, you come out of it looking like the hapless, innocent victim. It has all of the hallmarks of Generation Y: dastardly and unimportant destructiveness while deceiving others into letting you take on the role of the innocent victim.

My assessment of at least part of this phenomenon is that GenY has the power-fighting spirit of recent generations without the willingness to come face to face with that power. Generation X would have walked into the store, smashed the gallon of milk without any pretense, given the finger to onlookers, and walked back out or gone peacefully with the security officer (because GenX was indifferent enough to not care about getting in trouble). The protesters that preceded GenX would have entered the store with a megaphone, announced their destruction of the gallon of milk and the political motivations behind it, burned a draft card and/or bra, and would continue to make a scene until several police used tear gas and a fire hose to subdue and detain the individual.

But Generation Y? We’re used to anonymity. We feel entitled, not to fight against things or to get to have things, but to get away with things. We don’t fight the system head on, we don’t glare indifferently at the system with our middle fingers raised, but we certainly don’t support the system more than any previous generation. When our adolescents fight authority, they do it with a smile and overtly expressed support, while sneaking decisively and quietly behind authority’s back. I think this goes hand-in-hand with a generation that grew up with the anonymity of the internet. Our generation grew up with screen names and cheat codes. Previous generations saw a need to be in only one place at a time and being only one person at a time (though you could be different hour-to-hour). This generation attempts multiple existences, multiple states of mind, simultaneously. Perhaps formative years spent embracing a Cyberspace which bends previously accepted rules of time and space leads to a sense of duplicity as commonplace and identity as detachable and replaceable. Perhaps, as children, we used too many “God Mode” cheats: we became too used to invulnerability and doing whatever we wanted. (see also: Brene Brown’s TED talk on “The Power of Vulnerability”)

Of course, for all their deceptive ploys and crafty planning, GenY still posts their exploits to YouTube and Facebook, so it’s hard to be too worried about them as a threat. There is a contradiction in the rising generation: a need to publicize the secretive. The dilemma for them is the paradoxical need to be underground megastars, widely known among only a select few. They might be more deceitful and dishonest than previous generations, but they also feel a need to overshare exploits.

“Everyone wants to pull off the crime of the century…. /And get away with it. Get away with it. We Americans are freedom loving people, and nothing says freedom like getting away with it. /We went from Billy the Kid to Richard Nixon, Enron, Exxon, O.J. Simpson… /We used to dream about heroes, but now it’s just how to beat the system.” – Guy Forsyth, “It’s Been A Long, Long Time”